WASHINGTON--The use of secret evidence in the three-year jailing of a Muslim educator has been declared unconstitutional by a federal judge and a new hearing has been ordered.

On May 31, U.S. District Judge Joan A. Lenard ordered the Immigration and Naturalization Service (INS) to conduct a new hearing in the case of Dr. Mazen Al-Najjar, 43, a U.S. resident of Tampa, Fla., who in May 1997 was arrested, denied bail and ordered deported by INS officials without charge.

The husband and father of three was held under the secret evidence initiative that allows for the detainment of immigrants without charge or evidence being available to the prisoners or their attorneys. Secret evidence was signed into law under the 1996 Anti-Terrorism and Effective Death Penalty Act.

In her 71-page ruling, Judge Lenard declared that the one sentence summary of INS's use of secret evidence "lacks detail to bolster the credibility of its content," and indicated that immigration officials ought to make their secret evidence against the former University of South Florida professor public if they wanted to keep him in jail. The summary sentence of the INS alleged that Dr. Al-Najjar is "associated with the Palestinian Islamic Jihad." Mr. Al-Najjar is Palestinian by birth.

"Association is not a reasonable foundation for the immigration judge's decision to deny bond and continue to detain (him) as a threat to national security," the Judge wrote regarding the June 1997 decision to detain Mr. Al-Najjar. There must be a degree of participation with the group and their activities, not just a simple case of affiliation, she noted.

In a published report by the St. Petersburg Times, Dr. Al-Najjar's attorney, David Cole, said he is confident his client will be released. "I think it's a very strong renunciation of the government's practice of using secret evidence and holds that immigrants have the right to a fair trial," he told reporters.

Mr. Cole also appeared on behalf of his client recently, joined by a dozen witnesses and victims, during a May 23 House Judiciary Committee hearing on the use of secret evidence, stating that it disproportionately chooses Muslims and those of Arab descent.

Ibrahim Hooper of the Council on American-Islamic Relations (CAIR) said he is not surprised by the judge's decision, adding that it substantiates CAIR's position on the use of the tactic.

"What is happening is that every time a court is able to address the issue of secret evidence, it is being overturned.  The Justice Department and INS want to keep it away from being adjudicated in a courtroom. They just want to use it without any kind of backlash, but we are seeing now that whenever a judge sits down and asks is this constitutional, fair, or just, the answer is 'no'," he said. "Pretty soon we would like to see a court declare to ban the use entirely of secret evidence."

To date there are over two dozen cases pending secret evidence accusations. Three recent cases in New York, New Jersey and California found immigration judges reversing themselves after immigrants rebutted allegations against them. Dr. Al-Najjar awaits the setting of a new hearing date in the hopes of securing the right of bail and to reunite with his family.

Although considered a major development in his case, Dr. Al-Najjar's family is still disappointed he has not been released.

"So when is he going to get out?" asked his wife Fedaa Al-Najjar after the decision.

"Thank God the judge ruled for due process," commented his sister, Nahla Al-Arian. "It underlines our confidence in the justice system."

--Eric Ture Muhammad